In Re Marriage of Taylor

160 Cal. App. 3d 471, 206 Cal. Rptr. 557, 1984 Cal. App. LEXIS 2555

• Court: California Court of Appeal
• Decided: August 29, 1984
• Docket: Civ. 22508
• Status: Published

Opinions

Opinion

EVANS, Acting P. J.

On appeal from a finding that the family house was respondent husband’s separate property, wife contends the characterization was unsupported by the evidence presented. For reasons not asserted by wife, we must reverse.

The parties were married on October 3, 1979. In 1980, they purchased a lot and built a home entirely financed by husband’s separate property funds. Title was taken in joint tenancy.

Wife petitioned for dissolution on January 7, 1982. A trial was held solely on the issue of whether the house was community or separate property. The court found that wife had an understanding that the house was to be husband’s separate property. An interlocutory judgment was entered November 23, 1982, and wife appealed.

At the time of trial, In re Marriage of Lucas (1980) 27 Cal.3d 808 [166 Cal.Rptr. 653, 614 P.2d 285], was dispositive. Lucas permitted a spouse to prove marital property held in joint tenancy was actually separate property by means of an understanding or agreement with the noncontributing spouse that the property was to remain separate property or that the amount of the investment was to be reimbursed. (P. 815.) The agreement was not required to be in writing.

Subsequently, two sections have been added to the Civil Code which affect the issue before us. They state in pertinent parts: Ҥ 4800.1 For the purpose of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint tenancy form is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following:

“(a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property.

“(b) Proof that the parties have made a written agreement that the property is separate property.”

“§ 4800.2 In the division of community property under this part unless a party has made a written waiver of the right to reimbursement or signed a writing that has the effect of a waiver, the party shall be reimbursed for his or her contributions to the acquisition of the property to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and shall not exceed the net value of the property at the time of the division.” (Added by Stats. 1983, ch. 342.)¹

We are confronted with the threshold question of whether sections 4800.1 and 4800.2 govern property rights acquired prior to the effective date of enactment that have not been finally adjudicated by a judgment from which the time for appeal has passed. We conclude that they do. In doing so we have subordinated the presumption against retroactive application of statutes to the fundamental theorem of statutory construction that the intent of the Legislature, where possible, be given effect. (Mannheim v. Superior Court (1970) 3 Cal.3d 678, 686 [91 Cal.Rptr. 585, 478 P.2d 17]; In re Marriage of Bouquet (1976) 16 Cal.3d 583, 586-587 [128 Cal.Rptr. 427, 546 P.2d 1371].) The principal question therefore is whether the Legislature intended sections 4800.1 and 4800.2 to operate retroactively. In this instance we are given direct access to the uncodified, but stated intent of the Legislature. Statutes of 1983, chapter 342, section 4 (uncod.) provides, “SEC. 4. This act applies to the following proceedings: [f] (a) Proceedings commenced on or after January 1, 1984. [f] (b) Proceedings commenced before January 1, 1984, to the extent proceedings as to the division of the property are not yet final on January 1, 1984.” It clearly makes these provisions applicable to any proceeding not final as of January 1, 1984; they are applicable to this appeal.

We also conclude that retroactive application of section 4800.1 does not deny husband due process. All retrospective legislation is not invalid merely because it operates as such. It becomes invalid if it deprives a person of vested rights which are respected or protected by the state, or if it impairs the obligation of contract. (Robertson v. Willis (1978) 77 Cal.App.3d 358, 365[143 Cal.Rptr. 523].)

We fail to find in section 4800.1 any interference with vested rights. Rather, the section alters the evidentiary burden of proof when a husband and wife take property by a joint tenancy deed. (In re Marriage of Neal (1984) 153 Cal.App.3d 117, 121-124 [200 Cal.Rptr. 341]; In re Marriage of Martinez (1984) 156 Cal.App.3d 20 [202 Cal.Rptr. 646].)

Although the record does not reveal a written agreement (§ 4800.1, subd. (b)), the matter must be remanded for retrial to permit consideration of evidence on the questions of separate property contribution and reimbursement. (§ 4800.2.) There was no apparent question concerning the source of acquisition funds. Testimony presented at the trial indicates husband used separate funds to purchase the lot and to build the house; apparently, wife contributed funds to build a fence and should be reimbursed. Each party is entitled to reimbursement of the amounts paid out of separate property funds, to the extent they can be traced.

The instrument of title does not indicate a retention of the separate character of the property, nor was a written agreement relative to separate property asserted. (§ 4800.1, subd. (a).)

The judgment is reversed and the matter is remanded for retrial in order to determine the parties’ respective interests pursuant to sections 4800.1 and 4800.2.

Carr, J., concurred.

1 All further references are to the Civil Code.